United States Court of Appeals
For the First Circuit
No. 99-2020
UNITED STATES,
Appellee,
v.
CHRISTOPHER JAMES BAYES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Boudin, Stahl, and Lynch,
Circuit Judges.
Daniel G. Lilley, with whom Daniel G. Lilley Law Offices,
PA, was on brief for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Jay
P. McCloskey, United States Attorney, was on brief for appellee.
April 21, 2000
STAHL, Circuit Judge. Christopher Bayes was convicted
on one count of simple assault in violation of 18 U.S.C. §
113(a)(5) and 49 U.S.C. § 46506(1). On appeal, Bayes challenges
the sufficiency of the evidence to support his conviction and
also contests his sentence. For the following reasons, we
affirm.
I.
Background
As with any challenge to the sufficiency of the
evidence following a trial by jury, we recite the facts in the
light most favorable to the jury's verdict. See United States
v. DeMasi, 40 F.3d 1306, 1310 (1st Cir. 1994).
On June 5, 1999, Bayes boarded Delta Airlines Flight
64 from Atlanta, Georgia, to Manchester, England. Debbie
Parker, Mario Garcia, and Carron Smoak were the three flight
attendants apparently responsible for the section of the cabin
in which Bayes was seated. Before the plane left the gate,
Parker served Bayes a glass of champagne and a glass of orange
juice. When Garcia went to collect the two glasses a short
while later, Bayes responded by saying, "What are you, crazy?"
Although Garcia concluded that "we might have an unruly
passenger" on board, Parker gave Bayes another alcoholic
beverage once the plane was in the air.
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About an hour into the flight, Parker and Smoak began
to distribute linen, flatware, and bread dishes by placing them
on each passenger's dining tray. After providing Bayes with
these items, Smoak asked him what kind of bread he wanted. As
Smoak "reached over [her service] cart to get the roll that he
said he wanted . . . [Bayes] put his hand on [her] buttocks and
rubbed [her] buttocks and grabbed at the bottom of [her]
buttocks." Bayes claimed to have touched Smoak by accident, but
Wade McCallon, a passenger seated nearby, later described what
had occurred as "reaching behind the flight attendant and
grabbing her in the rear end" and "squeezing."
Smoak immediately complained about Bayes's conduct to
her on-board supervisor, Susan Corbett, and to the on-board
Customer Service Coordinator, Christopher Yates. Although there
are conflicting accounts of exactly what happened next, there
was evidence that Bayes persisted in being unruly despite
periodic warnings from members of the crew. A scuffle ensued,
ending only after the captain dumped thousands of gallons of
fuel, diverted the aircraft in mid-flight, and made an
unscheduled landing so that Bayes could be taken off the plane
at Bangor International Airport in Maine.
Bayes was charged with five counts of simple assault
against Smoak, Garcia, Corbett, Yates, and a passenger named
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Rhine Blake. See 18 U.S.C. § 113(a)(5) (criminalizing "[s]imple
assault" within the special maritime and territorial
jurisdiction of the United States); 49 U.S.C. § 46506(1)
(incorporating the conduct proscribed by 18 U.S.C. § 113(a)(5)
as an offense within the special aircraft jurisdiction of the
United States). Bayes also faced one count of interfering with
a flight crew in violation of 49 U.S.C. § 46504. After a five-
day trial, a jury convicted Bayes of the assault against Smoak
but either acquitted him or failed to reach a verdict with
respect to the other charges. The district court sentenced
Bayes to six months in prison with a $10 special assessment and
a $5000 fine. This appeal followed.
II.
A.
Bayes supports his challenge to the sufficiency of the
evidence by arguing that the offense for which he was convicted
requires a specific kind of intent that the government failed to
prove. Before reaching this claim, however, we must consider
whether Bayes has preserved the issue for appellate review.
After the government rested its case at trial, Bayes
moved for a judgment of acquittal. See Fed. R. Crim. P. 29(a).
Although Bayes made his motion "on all counts," the arguments he
offered to support it spoke only to the other counts in the
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indictment and not to the charge of assaulting Smoak. When
pressed on the issue, Bayes's attorney conceded that "as far as
Carron Smoak's case [goes], the best view of the evidence would
be an assault. So, I'm not going to argue that that couldn't be
found by the jury." A few moments later, counsel confirmed that
Bayes was not moving for a directed finding with respect to that
charge because "if you believe [Smoak], there's sufficient
evidence for a jury to find [Bayes] guilty."
In any event, the district court refused to enter a
judgment of acquittal, the trial proceeded, and ultimately the
jury found Bayes guilty only of assaulting Smoak. After the
jury was released, Bayes filed a new motion for a judgment of
acquittal questioning the sufficiency of the evidence supporting
the charge of conviction. See Fed. R. Crim. P. 29(c) ("It shall
not be necessary to the making of such a motion that a similar
motion has been made prior to the submission of the case to the
jury."). Although this motion did put the relevant count of
conviction under scrutiny, it still failed to raise the question
of intent, merely arguing that none of the witnesses could have
seen the alleged attack. (Motion for Judgment of Acquittal
("The testimony of Carron Smoak failed to place her in a
position on the airplane where witnesses could have observed
that the alleged assault took place.").)
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On appeal, Bayes now seeks to change hats. Rather than
claiming that no one could have witnessed the alleged assault,
Bayes contends that his offense of conviction requires a
specific kind of intent that the government failed to establish.
Because Bayes never brought this argument to the district
court's attention, we might consider it waived. See, e.g.,
United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) ("A
litigant cannot jump from theory to theory like a bee buzzing
from flower to flower. . . . [W]hen a party fails to raise a
theory at the district court level, that theory is generally
regarded as forfeited and cannot be advanced on appeal."), cert.
denied, 67 U.S.L.W. 3613 (1999).
But even in the face of procedural default, we retain
the discretion to correct "[p]lain errors or defects affecting
substantial rights." Fed. R. Crim. P. 52(b). We will exercise
this discretion only to correct (1) an error; (2) that is plain;
(3) that affects substantial rights; and (4) that "seriously
affect[s] the fairness, integrity, or public reputation of
judicial proceedings." United States v. Johnson, 520 U.S. 461,
467 (1997) (citations and internal quotation marks omitted)
(alteration in original). With this standard in mind, we turn
our attention to whether there has been a plain error or defect
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in this case and, if so, whether it warrants redress under Rule
52(b).
B.
Bayes contends that the evidence failed to support his
conviction for simple assault because the government did not
prove that he intended to injure Smoak or to threaten her with
harm when he touched her on the buttocks. Viewing the evidence
in the light most favorable to the jury's verdict, we consider
whether a rational juror could have found guilt beyond a
reasonable doubt. See United States v. Alicea-Cardoza, 132 F.3d
1, 5 (1st Cir. 1997).
Bayes was convicted of violating 18 U.S.C. § 113(a)(5),
which proscribes the crime of "[s]imple assault" but does not
define that term in any way. Although the statute neither
states nor suggests that simple assault requires the defendant
to have acted with a specific kind of intent, the district court
concluded that the offense demanded exactly that. As a result,
the court instructed the jury that "to prove simple assault, the
government must demonstrate [that] the defendant willfully
attempted to inflict injury upon the person of another or
threatened to inflict injury upon the person of another, coupled
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with an apparent present ability to do so, [and/or1] caused [a]
reasonable apprehension of immediate bodily harm."
If this instruction accurately described the level of
intent that § 113(a)(5) requires, then we might question whether
there was sufficient evidence on which to base a conviction.
The jury reasonably could have found that Bayes had touched
Smoak on the buttocks on purpose, given her testimony that he
had "put his hand on [her] buttocks and rubbed [her] buttocks
and grabbed at the bottom of [her] buttocks." McCallon
confirmed that Bayes had "reach[ed] behind [Smoak] and grabb[ed]
her in the rear end" and "squeez[ed]." But this testimony
merely supported the conclusion that Bayes had touched Smoak
deliberately; it did not necessarily demonstrate that Bayes had
intended to injure Smoak or to threaten her with harm when he
touched her. Likewise, while Smoak testified that Bayes's
conduct caused her to feel "frightened," it was at least
debatable whether Bayes intended that result.
Nevertheless, § 113(a)(5) merely prohibits "[s]imple
assault" without specifying a particular kind of intent as a
1
The trial court should have included a conjunction here to
indicate whether a "reasonable apprehension of immediate bodily
harm" was an additional element of simple assault or an
alternative basis for conviction. The trial transcript
indicates that the court failed to make this distinction, but
our resolution of the merits does not depend on the court's
intentions in this regard.
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textual element of the offense. The district court's
requirement that Bayes "willfully attempted to inflict injury
upon the person of another or threatened to inflict injury" does
not appear anywhere in the statutory language. Unlike §
113(a)(1) of the statute, which criminalizes "[a]ssault with
intent to commit murder," and § 113(a)(3), which prohibits
"[a]ssault with a dangerous weapon, with intent to do bodily
harm," a specific kind of intent is not inherent in the
statutory definition of the crime for which Bayes was convicted.
The fact that Congress enumerated a very specific type of intent
for some kinds of assault but not for others casts doubt on
whether "[s]imple assault" -- a term left undefined -- requires
an intent to cause harm or to threaten another with injury. See
United States v. Martin, 536 F.2d 535, 535-36 (2d Cir. 1976)
(per curiam).
We turn to the common law for additional guidance. See
United States v. Turley, 352 U.S. 407, 411 (1957) ("[W]here a
federal criminal statute uses a common-law term of established
meaning without otherwise defining it, the general practice is
to give that term its common-law meaning."). Assault had two
meanings at common law, "the first being an attempt to commit a
battery and the second [being] an act putting another in
reasonable apprehension of bodily harm." United States v. Bell,
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505 F.2d 539, 540 (7th Cir. 1974); see also United States v.
Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982). A battery, in
turn, did not require proof that the defendant intended to
injure another or to threaten her with harm. "The slightest
willful offensive touching of another constitute[d] a
battery . . . regardless of whether the defendant harbor[ed] an
intent to do physical harm." United States v. Williams, 197
F.3d 1091, 1096 (11th Cir. 1999); see also Burton v. Livingston,
791 F.2d 97, 99 (8th Cir. 1986) (noting that "a plaintiff may
seek redress and win damages under state law for any unwanted
touching under the common law of battery").
Thus, under the traditional view, "offensive touchings
(as where a man puts his hands upon a girl's body or kisses a
woman against her will . . .) w[ould] also suffice for battery"
in the absence of a valid justification or excuse. 2 Wayne R.
LaFave & Austin W. Scott, Jr., Substantive Criminal Law §
7.15(a), at 301-02 (1986). As Blackstone observed in his
Commentaries:
The lea[s]t touching of another's per[s]on
wilfully, or in anger, is a battery; for the
law cannot draw the line between different
degrees of violence, and therefore totally
prohibits the fir[s]t and lowe[s]t [s]tage
of it: every man's per[s]on being [s]acred,
and no other having a right to meddle with
it, in any the [s]lighte[s]t manner.
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3 Blackstone, Commentaries on the Laws of England 120 (Univ. of
Chicago Press ed. 1979) (1768) (alterations from old English).
Consistent with these principles, the common law
provided that an assault committed by way of a battery did not
require an intent to cause or to threaten an injury as long as
the defendant touched another in a deliberately offensive manner
without a valid reason to do so. See 2 LaFave & Scott, supra,
§ 7.16(a), at 37 n.13.1 (Supp. 1999). In Gates v. State, for
example, a Georgia court affirmed a conviction for "assault and
battery" based on evidence that the defendant "twice
deliberately 'touched,' 'tapped' or 'hit' [someone] on the
buttocks" without her consent. 138 S.E.2d 473, 474 (Ga. Ct.
App. 1964). Similarly, in Wood v. Commonwealth, the Virginia
Supreme Court affirmed a conviction for "assault and battery"
based on evidence that the defendant groped a minor in a
nonviolent but sexually offensive manner. 140 S.E. 114, 115-16
(Va. 1927). Likewise, in Guarro v. United States, the D.C.
Circuit observed that "[u]nless there is consent, it would seem
that a [nonconsensual] sexual touching is a sufficiently
offensive act to constitute an assault" under District of
Columbia law. 237 F.2d 578, 580-81 (D.C. Cir. 1956).
These cases do not control our decision, but they
provide useful guidance as to what constitutes an assault at
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common law. Collectively, the decisions support the conclusion
that, in a prosecution for simple assault under § 113(a)(5), it
is sufficient to show that the defendant deliberately touched
another in a patently offensive manner without justification or
excuse. Cf. United States v. Frizzi, 491 F.2d 1231, 1232 (1st
Cir. 1974) (concluding that spitting would support a conviction
for assaulting or otherwise impeding a federal officer in
violation of 18 U.S.C. § 111 because "[a]lthough minor, it is .
. . a bodily contact intentionally highly offensive"). We agree
with the views of some of our sister circuits in this regard.
See, e.g., Williams, 197 F.3d at 1096 (concluding that §
113(a)(5) does not require an intent to cause physical harm and
therefore covers the act of touching a minor in a nonviolent but
sexual manner); Martin, 536 F.2d at 536 (indicating that neither
"assault by striking, beating[,] or wounding" nor "simple
assault" requires an intent to do bodily harm); cf. United
States v. Masel, 563 F.2d 322, 324 (7th Cir. 1977) (affirming a
conviction for assaulting a member of Congress in violation of
18 U.S.C. § 351, based on evidence that the defendant "willfully
caused, by spitting, an offensive touching").
Against this background, it appears that the district
court's instructions to the jury overstated the government's
burden, to the defendant's benefit, by demanding proof of a
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higher level of intent than § 113(a)(5) actually requires. With
the correct standard in mind, we turn to the evidence in the
record. Although Bayes maintained that he had touched Smoak to
get her attention and that any contact with her buttocks was
accidental, there was an abundance of competing testimony that
he had "rubbed [her] buttocks and grabbed at the bottom of [her]
buttocks" and "squeez[ed]." Smoak testified that she felt
"angry," "surprised," and "frightened" when Bayes touched her.
In the face of this testimony, the jury was entitled to conclude
that Bayes had groped Smoak in a way that could not have been
accidental, that must have been deliberate, and that was
patently offensive. On these facts, the evidence amply
supported a conviction for simple assault under 18 U.S.C. §
113(a)(5). There was no plain error.
III.
Bayes also challenges the length of his prison
sentence. Because simple assault is punishable by a maximum of
six months in prison, either with or without a fine, see 18
U.S.C. § 113(a)(5), it constitutes a Class B misdemeanor that is
exempt from the United States Sentencing Guidelines ("the
Guidelines"), see U.S.S.G. § 1B1.9 & application note 1. We
will uphold a sentence for a non-Guidelines offense unless the
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sentence was "imposed in violation of law" or was "plainly
unreasonable." 18 U.S.C. §§ 3742(e)(1) & (4).
The district court sentenced Bayes to six months in
prison with a $10 special assessment and a $5000 fine. Bayes
concedes that this sentence was within the range that §
113(a)(5) permits, but argues that it was plainly unreasonable
to give him the maximum allowable term of imprisonment. In
support of this claim, Bayes contends that the district court
based its sentence entirely on conduct for which the jury either
acquitted him or failed to reach a verdict, when the court
instead should have focused on the assault for which he was
convicted.
Both the facts and the law belie Bayes's argument.
Although the district court considered "hung-jury conduct" in
order to determine Bayes's sentence, it also considered
"relevant conduct" that pertained directly to his offense of
conviction. Thus, contrary to what Bayes contends, the court
did not focus "only" on conduct for which he was never
convicted. In any event, the court's consideration of hung-jury
conduct was permissible as a matter of law. See 18 U.S.C. §
3661 (providing that "[n]o limitation shall be placed" on a
trial court's ability to consider the defendant's "background,
character, and conduct" in order to arrive at an appropriate
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sentence); see also United States v. Lombard, 102 F.3d 1, 5 (1st
Cir. 1996) (observing that even acquitted conduct may be taken
into account); cf. United States v. Watts, 519 U.S. 148, 153-54
(per curiam) (concluding that even under the Guidelines, courts
can consider "all other related conduct, whether or not it
resulted in a conviction").
In the final analysis, the district court understood
that its goal was to determine "what is an appropriate sentence
for the crime that the defendant was found guilty of." After
surveying the facts surrounding Bayes's case, the court
concluded that the defendant's unwillingness to accept
responsibility for assaulting Smoak, the impact of his conduct
on the "specific victim of the assault charge," and the risk
that his conduct posed on an airplane in mid-flight warranted
the imposition of the maximum allowable prison term. These
considerations properly reflected the interests of punishment,
deterrence, and public safety that a court ought to weigh at
sentencing. See 18 U.S.C. § 3553(a)(2)(A), (B), & (C). Against
this background, the district court's sentence was appropriate.
IV.
Conclusion
For the foregoing reasons, we affirm the defendant's
conviction and sentence.
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Affirmed.
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